Rosco Moudings (Pty) Ltd and others v NUMSA and others (JA13/98) [1999] ZALAC 2 (18 February 1999)

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[1999] ZALAC 2
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Rosco Moudings (Pty) Ltd and others v NUMSA and others (JA13/98) [1999] ZALAC 2 (18 February 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
Case Number: JA13/98
In the matter between:
ROSCO MOULDINGS (PTY) LTD First
Appellant
VOLANTE Second Appellant
and
NUMSA
First
Respondent
AND OTHERS Second and Further
Respondents
JUDGMENT
NGCOBO AJP
On
29 September 1995 the appellant companies, Rosco Mouldings (Pty)
Ltd and Volante, dismissed a number of their employees, second
and
further respondents (the employees), for participating in a
go-slow. Volante is joint venture between a company called

Euro-Plastifoam and Rosco Moulding (Pty) Ltd. The appellants
manufacture mainly motor vehicle parts primarily for Honda, Nissan
and Mercedes Benz. All the dismissed employees were members of
NUMSA, the first respondent,
the
recognised collective bargaining representative of the employees of
the appellants. Consequent upon their dismissal, the
employees
brought two separate applications in terms of section 46(9) of the
Labour Relations Act, 28 of 1956, as amended,(the
Act) against each
appellant. The two applications were subsequently consolidated.
After hearing evidence, the industrial court
found that the
dismissal of the employees constituted an unfair labour practice
and ordered the reinstatement of the employees.
The
present appeal is against both the determination and the order made
by the industrial court.
Broadly
speaking, the appeal raises three issues:
(a) The correctness of the finding that the dismissal of the
employees constituted an unfair labour practice;
(b) the appropriateness of the relief awarded; and
(c) the correctness of the order joining certain twenty employees
who were not on the original list of dismissed employees when
the
dispute was referred to the industrial council.
The
background facts against which these issues must be determined are
not in dispute.
The
appellants and NUMSA had been engaged in wage negotiations. These
negotiations commenced in April 1995. NUMSA demanded
a wage
increase of 15% plus “an improvement factor” of 5% across the
board. The appellants offered a 8% increase, which
was to be the
last and final wage offer by the appellants. By early August 1995
the negotiations had reached a deadlock. The
National Industrial
Council for the Motor Industry was unable to resolve the dispute.
NUMSA gave notice to conduct a strike
to ballot amongst its
members. In the meantime, some of the employees accepted the
appellants’ wage offer of 8% increase.
At Euro-Plastifoam, the
majority of employees accepted the offer.
On
a Friday, 22 September, the employees of the appellants took a
decision to embark on a go-slow. The go-slow commenced during
the
week of 26 September and continued until 29 September, when the
employees were dismissed. According to appellants’ witnesses,
all the employees participated in the go-slow. Memoranda and
ultimatums urging the employees to resume their normal duties
went
unheeded.
The
appellants assumed that those employees who had not accepted the
wage offer were the ones who had participated in the go-slow.
The
rationale for this assumption was that these employees were the
only employees who still had a dispute with the appellants.

Accordingly, the appellants took a decision to dismiss all those
employees who had not accepted the wage offer.
The
dismissed employees included Messrs Christopher Kanyane, Solomon
Morobane and Banks Mashale who were absent from work either
owing
to illness or on sick leave during the period of the go-slow.
In
the course of his argument, Mr Woudstra, who appeared on behalf of
the appellants, very fairly and properly conceded that there
was no
basis for the dismissal of the employees who were absent from work.
The dismissal of Kanyane, Morobane and Mashale was
indeed
substantively unfair and it constituted an unfair labour practice.
As
for the remaining employees, the central issue for determination is
whether the decision by the appellants to dismiss only
those
employees who had not accepted the wage offer was fair and
reasonable.
A
convenient starting point is the parity principle. This principle
is a basic tenant of fairness. It requires that like cases
should
be treated alike.
National Union of Metal Workers of South
Africa v Henred Fruehauf Trailers
[1994] ZASCA 153
;
1995 (4) SA 456
(A) at
463 G-J;
Early Bird Farms (Pty) Ltd v Mlambo
[1997]
5 BLLR 541
(LAC) at 545 H
.
However, this is not an
inflexible principle which is to be applied in all cases. There
may be cases where the dictates of fairness
and justice may require
the principle to yield to some other considerations. The
circumstances of each case have to be considered
and evaluated.
Generally speaking, the criterion used to differentiate must be
fair and reasonable.
The
appellants had little doubt that the workforce was engaged in the
go-slow. According to the witnesses of the appellants
the entire
workforce was engaged in the go-slow. Yet only second and further
employees were dismissed. The only basis upon
which these
employees were selected for dismissal was because they had not
accepted the appellants’ wage offer. On behalf
of the
appellants, it was submitted that the criterion applied by the
appellants was fair and reasonable in the circumstances
of this
case.
For
the submission that the criterion applied by the appellants was
fair and reasonable, Mr Woudstra relied upon circumstantial
evidence, which, he submitted, pointed out the dismissed employees
as being the only ones who participated in the go-slow. The
circumstantial evidence relied upon was, inter alia, the fact that:
the employees who accepted the offer declared that they were
not in
dispute with the appellants; that the employees at Euro-Plastifoam,
where a majority of employees accepted the wage offer,
did not
participate in the go-slow; and that work returned to normal after
the dismissal of the employees. He submitted that
the only
inference that can be drawn from this circumstantial evidence is
that those employees who did not accept the offer were
the only
ones who participated in the go-slow. They had the motive to do
so, he argued.
The
foundation of this argument is the assumption that the employees
who accepted the wage offer did not participate in the go-slow.
Mr
Woudstra’s argument must stand or fall by the distinction made by
the appellants. If there was no basis for the distinction,
the
criterion applied by the appellants cannot be said to be fair and
reasonable. Indeed, Mr Woudstra accepted that this was
so.
The
fallacy of the appellants’ argument is that it overlooks the
direct evidence of the appellants’ managers who testified
that on
their observation the entire workforce was engaged in the go-slow.
They further testified that no employee approached
them with a
complaint that he/she wanted to work but was prevented from doing
so by the go-slow. Indeed, in the light of this
evidence, Mr
Woudstra was constrained to concede that the workforce was engaged
in the go-slow. He submitted nevertheless that
if the employees
who had accepted the wage offer were seen not to be working, this
was not because they were engaged in the go-slow.
The difficulty
with this submission is that no employee disassociated
himself/herself from the go-slow. In addition, on Friday
22
September a decision was taken that the workforce would embark on
a go-slow.
In
the light of the direct evidence of participation of the workforce
in the go-slow, the inference contended for by Mr Woudstra
cannot
stand.
It
was further submitted that in order to find that the employees who
had accepted the offer had participated in the go-slow,
they would
have to be disbelieved when they declared, when accepting the
offer, that they were not in dispute with the appellants.
That
does not necessarily follow. The employees were dismissed not
because they were in dispute with the appellants, but because
they
had participated in the go-slow. Once the evidence establishes
that the entire workforce participated in the go-slow, the
declaration by them that they were not in dispute with the
appellants, ceases to be an important consideration. This also
applies
to the other circumstancial evidence relied upon by Mr
Woudstra.
In
any event, the inference contended for by Mr Woudstra is not the
most plausible inference. The fact that these employees accepted
the wage offer does not necessarily mean that they were happy with
the increase they had received, let alone the fact that they
did
not participate in the go-slow. Indeed, it is not inconceivable
that some of the employees who had accepted the wage offer
were
nevertheless unhappy with the increase as they had not received the
increase they had initially demanded. These employees
would have
had a reason to participate in the go-slow in the hope that they
might receive a better increase than they had accepted.
Another
important factor to bear in mind is the fact that the appellants’
production line is organised in such a manner that
retardation of
work at one point on the production line would affect the volume of
work that was available for employees further
down the production
line. It is, therefore, not inconceivable that some of the
dismissed employees found themselves either not
working or working
at a slower pace because they did not have enough work coming
through to them.
Where
a group of employees participate in the same form of misconduct and
it is virtually impossible to say who of the employees
were not
engaged in such misconduct, it is patently unfair to arbitrarily
select, for dismissal, a small group of employees.
In the light
of the direct evidence that the entire workforce was engaged in the
go-slow, there was no basis for treating differently
the employees
who had accepted the wage offer from those who did not. The
criterion applied by the appellants in selecting the
employees for
dismissal was, in my view, arbitrary and patently unfair. The
arbitrariness and the patent unfairness of this
selection criterion
is amply demonstrated by the dismissal of three employees who were
absent during the period of the go-slow.
The appellants assumed
that they had participated in the go-slow because they had not
accepted the wage offer. Yet It could
hardly be suggested that
these employees participated in the go-slow.
Apart
from the aforegoing the dismissed employees were never warned that
they were considered responsible for the go-slow because
they had
not accepted the wage offer and that the future of their employment
was in jeopardy for that reason. Mr Woudstra submitted
that it was
not necessary for the appellants to warn the employees beforehand
of the criterion that would be used in selecting
the employees to
be dismissed. This is so, he submitted, because all the employees
knew that they would be dismissed for participating
in the go-slow.
That may be true though, what the dismissed employees did not
know, but what they were entitled to know prior
to their dismissal,
was that their failure to accept the wage offer would be used
against them. To be fair, an ultimatum must
inform the employee,
inter alia, why his/her employment is in jeopardy and what remedial
action such an employee is required
to take to avoid dismissal.
The ultimatums issued by the appellants failed to do this. In
addition, twenty seven employees
who were working the night shift
were not even aware of the final two ultimatums as these were
issued after the night shift had
left work and they were only due
to resume their duties on Monday 2 October 1995.
In
all the circumstances, I conclude that the dismissal of the
employees was substantively unfair.
Then
there is the question of remedy.
In
awarding relief, the industrial court differentiated between the
three absentees and the twenty seven night shift employees
who did
not receive the final two ultimatums on the one hand, and the
remaining employees on the other hand. While there is basis
for
treating the three absentees differently from the other dismissed
employees, there is no basis for differentiating between
those who
received the ultimatums and those who did not, where the dismissal
of both groups was substantively unfair. Once
it is accepted that
dismissals were substantively unfair and that both those groups of
employees participated in the go-slow,
the receipt of the
ultimatums ceases to be an important consideration for purposes of
the relief.
Apart
from the aforegoing, the orders for reinstatement made by the Court
a quo fell foul of the provisions of section 49(3)(b)
and (c) read
with section 46(9)(c) of the Act, which limits retrospective relief
of reinstatement to a maximum period of six
months.
Cremark a
division of Triple P- Chemical Ventures (Pty) Ltd v South Africa
Chemical Workers Union and Others (1994) 15 ILJ 289
(LAC) at 294E -
295A; Trident Steel (Pty) Ltd v John NO and Others (1987) 8 ILJ 27
WLD at 38J - 39A
. The order made by the Court a quo went
beyond the six months period.
The
industrial court committed a misdirection in these two respects.
This court is, therefore, entitled to consider the question
of
relief afresh.
Fairness
and justice require that employees who are dismissed unfairly be
reinstated unless, having regard to all the circumstances,
there is
reason to refuse reinstatement.
National Union of Metal
Workers of South Africa v Henred Fruehauf Trailers,
supra
at 462J-463A
. A go-slow has been described as a most insidious
form of industrial action, rightly so. Nor can it be gainsaid that
the conduct
of the employees was reprehensible. The sabotage which
followed was the most deplorable conduct on the part of the
employees.
However, there are other considerations. The dismissed
employees were not alone in their conduct. The employees were part

of a workforce all whom had participated in the go-slow. They were
the only ones who were dismissed. Others whose conduct was
equally
reprehensible, were left undisturbed. The only thing that set them
apart was the fact that they did not accept the
wage offer.
In
these circumstances a denial of reinstatement would not be in
accordance with fairness and justice. However, this court cannot
turn a blind eye to the conduct of the employees. Their conduct
was reprehensible. This is a factor which must be taken into
consideration when determining whether reinstatement should operate
retrospectively. The three absentees, must of course be
treated
differently from the other employees. They did not participate in
the go-slow. The others participated in the go-slow.
Fairness
requires that the three absentees should be reinstated
retrospectively. The remaining employees do not deserve that
relief - it is sufficient if they are reinstated as from the date
of the order of the industrial court.
Finally,
the appellants objected to the joining of certain twenty employees
on the grounds that: (a) these employees did not appear
on the list
of employees when the dispute was submitted the industrial council;
(b) no formal application was made to join them
as applicants; and
(c) there is no evidence that six of these employees were employees
of the appellants and that they were dismissed
on 29 September.
Mr
Woudstra conceded that, in view of the affidavits filed by the
employees, including the six employees complained of, confirming
that they were further applicants and that they were dismissed by
the appellants on 29 September, he could no longer persist
with the
last mentioned ground of objection.
The
basic submission by the appellants in regard to the employees who
were joined is that the industrial court had no jurisdiction
in
respect of the employees sought to be joined as they were not
parties to the dispute that was referred to the industrial council.
The
referral of a dispute to the industrial council is governed by
section 27 A(1)(a) of the Act. What that section requires
is that
a matter giving rise to the dispute shall be referred to the
industrial council. The matter that gave rise to the dispute
here
was the dismissal, on 29 September, of the employees who were
members of NUMSA. It is that dispute which was referred to
the
industrial council. When NUMSA referred the dispute to the
industrial council, it did so in its own name and on behalf of
its
members. That the referral was accompanied by a list of employees,
does not detract from the fact that NUMSA referred the
dispute on
behalf of its members who were dismissed by the appellants. To now
say that the referral was limited to those employees
whose names
appeared on the original list, seems to me to be a highly
artificial and unacceptably narrow view, in the circumstances.

There was, in my view, substantial compliance with section 27
A(1)(a) of the Act.
In
these circumstances, there can be no legitimate objection to
joining the twenty employees as further applicants. In the result,
the industrial court had jurisdiction in respect of these employees
and they were properly joined as further applicants in the
court
below.
Fairness
requires that no order as to the costs of the appeal should be
made. I did not understand Mr Van Der Riet, who appeared
on behalf
of the respondents, to contend otherwise.
In
the event, I make the following order:
(a) The appeal succeeds to the extent that the order of the
industrial court is set aside and there is substituted the following
order:
“1. The dismissal of the applicants by the respondents on 29
September 1995 was unfair and it constituted an unfair labour
practice.
2. The respondents are ordered to reinstate:
2.1 Messrs Christopher Kanyane, Solomon Morobane and Banks Mashale,
retrospectively, for a period of six months from 6 February
1998;
and
2.2 the remaining applicants with
effect from 6 February 1998,
in their employ on the same terms and
conditions which applied to them prior to their dismissal.
3. The applicants are ordered to
report for work at their respective places of employment no later
than 08h00 on Monday, 8 March
1999.
4. Any applicant who fails to comply
with the order in paragraph 3 above shall forfeit the right to
reinstatement.
5. There is no order for costs.”
(b) No order as to the costs of
appeal is made.
Ngcobo AJP
I agree,
Froneman DJP
Date of hearing : 5 February 1999
Date of judgment : 18 February
1999
For the Appellant : H Van R
Woudstra SC
Instructed by : Riaan Du Plessis
Inc
For the Respondent : Adv J G Van
Der Riet
Instructed by : Cheadle Thompson
& Haysom